A Glimmer of Justice

Ever since 1983, when Argentina made the transition from a military dictatorship to a democracy, holding government officials accountable for atrocious crimes has been at the top of the international human rights agenda. After President Raúl Alfonsín came to power, Argentina established the first effective truth commission—the National Commission on the Disappearance of Persons—to document human rights violations that had occurred over the course of the fallen dictatorship. It was accompanied by prosecutions in domestic courts of high-level military officers who had ruled the country during the dictatorship. Five of them were found guilty of abuses.

Other Latin American countries, including Chile and El Salvador, set up truth commissions some years later, and they were followed by more than forty countries in different parts of the world. The Truth and Reconciliation Commission launched in South Africa in 1995 was the most notable example, because all of its proceedings took place in public hearings and because the law establishing it encouraged torturers and murderers to confess by allowing them to thereby obtain amnesty and avoid prosecution.

Those seeking accountability have a dual agenda: to determine the truth about crimes, their victims, and their perpetrators, and to obtain justice through the prosecution and punishment of those most responsible for them. In the early 1990s, the effort to fulfill these goals entered a new phase with the establishment of the first international criminal courts since the post–World War II tribunals at Nuremberg and Tokyo. The United Nations established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and a similar body for Rwanda the following year. The UN also collaborated with national governments in countries such as Sierra Leone and Cambodia, where atrocious crimes had been committed, to create “hybrid” criminal courts. In 1998, representatives of most of the world’s governments assembled in Rome and adopted a treaty, known as the Rome Statute, calling for the creation of a permanent International Criminal Court (ICC). For many of those active in the international human rights movement, this was the peak achievement of the drive to ensure accountability. It would have a global effect in curbing atrocities.

Though adoption of the Rome Statute was opposed by the United States¹ and a few other governments (China, Iraq, Sudan, Qatar, Yemen, and Israel), and many more abstained when it came to a vote at the Rome conference, the momentum behind the cause of international accountability propelled the ICC into existence. Because formation of the court required at least sixty countries to ratify the Rome Statute, and because many countries could not ratify it without first amending their own constitutions (to eliminate such provisions as grants of immunity for heads of state and limits on the duration of prison sentences), it was widely predicted that it would take more than five years to come into force. Yet by April 2002, less than four years after the adoption of the Rome Statute, sixty-six countries had ratified it. The court was established that July. By now, it has been ratified by 123 countries—most of them in Africa, Europe, and Latin America (including the island countries of the Caribbean). Other regions are more sparsely represented.

By and large, international tribunals focusing on particular countries have functioned well. The courts established for the former Yugoslavia and Rwanda have conducted several scores of fair trials that led to the conviction and punishment of many political and military leaders with the greatest level of responsibility for the most severe crimes committed in those countries. The court for the former Yugoslavia has a particularly admirable record because its prosecutions and convictions have dealt with crimes committed by all parties involved in the conflicts in that region.

In addition, the work of the ICTY made possible the establishment of national tribunals in Bosnia, Croatia, and Serbia that have tried and convicted many lower-ranking officials involved in war crimes. The Special Court for Sierra Leone has also been a success. Its sentencing of former Liberian warlord and dictator Charles Taylor to fifty years, which he is serving in a British prison, is a warning to other African leaders of the punishment that could result from gross human rights abuses. Another hybrid tribunal, sponsored by Senegal and the African Union, has more recently tried and convicted Hissène Habré, the former dictator of Chad. He was sentenced to life in prison.

Though launching the International Criminal Court seemed the most important means of promoting accountability, its record over the last decade and a half has disappointed many of those who sought its creation. The ICC is hampered by a shortage of the resources required to conduct investigations, the excruciatingly slow pace of some of its preliminary examinations, its inability to apprehend or compel the appearance of some of those it has indicted, and the difficulty it has encountered in protecting witnesses testifying against powerful officials.

The ICC’s most serious weakness, though, has been that it lacks jurisdiction over crimes committed in or by countries that have not ratified the Rome Statute, including the United States, Russia, China, India, Turkey, Indonesia, Iran, Saudi Arabia, Israel,² Egypt, Pakistan, and North Korea.³ The statute does allow the United Nations Security Council to refer matters arising in any country to the court, but such referrals can be blocked if one of the five permanent members of the council exercises its veto power. This protects the United States, Russia, and China against such referrals, as they would surely veto cases prosecuting their own officials. It also makes it possible for permanent members to protect officials of other governments, such as those of Uzbekistan, Syria, Saudi Arabia, or North Korea.

The ICC’s inability to deal with crimes committed by the world’s superpowers, or by states protected by the superpowers, has caused resentment in some countries that have made themselves vulnerable to prosecutions by ratifying the treaty for the ICC and that do not enjoy protection by permanent members. The fact that only African leaders have been subject to prosecutions has greatly increased such resentment. Some African governments have come to regard the court as an instrument of the world’s superpowers for punishing African criminality. Nor have African critics of the ICC been mollified by those who point out that most African cases have been initiated by African governments themselves to deal with crimes committed on their territory. This has been the case in Uganda, the Democratic Republic of Congo, the Central African Republic, and Mali. Sudan and Libya were referred to the ICC by the UN Security Council. Kenya and Côte d’Ivoire⁴ are the only states where the ICC office of the prosecutor initiated cases.

Though the ICC has issued more than forty indictments, after a decade and a half there have been just four convictions: two from the Democratic Republic of Congo, one from the Central African Republic, and one from Mali. Some proceedings are still underway, other indictments have been dismissed or withdrawn, a few defendants have died, and there has been one acquittal. Though heads of state or former heads of state of Sudan, Kenya, and Libya were among those indicted, they have not been tried. (The trial of former Côte d’Ivoire president Laurent Gbagbo began in 2016 and is still in progress.)

The ICC was intended by some of its creators to be an effective means of curbing great crimes without actually bringing prosecutions. The principal means by which this was to be accomplished is known as “complementarity.” The ICC may bring prosecutions only when national governments have failed to prosecute in good faith the crimes subject to their jurisdiction. It was hoped that this would encourage them to bring their own prosecutions. The Argentine lawyer who served as the ICC’s first chief prosecutor, Luis Moreno Ocampo, had argued that “the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be its major success.”⁵ As yet, there is scant evidence that this has been a factor in the actions of national governments.

Despite its few successes, one of the ICC’s most important achievements (though barely known) took place during its conception. Ten countries, including the Democratic Republic of Congo (DRC), ratified the Rome Statute on a single day, April 11, 2002, each hoping to provide the sixtieth ratification needed to bring the court into being. At the moment of ratification, the armies of five other African governments were engaged in combat with one another in the DRC, pillaging the country’s plentiful natural resources. Rwanda had sent troops to combat the génocidaires who had taken refuge there when Paul Kagame’s Rwandan Patriotic Front came to power; Ugandan troops were sent in support of the Rwandans; and armed forces from Angola, Namibia, and Zimbabwe went to fight the Rwandans and Ugandans.

The conduct of these forces in the DRC made them potential targets as war criminals, but indictments could only be issued for crimes committed after the court was established on July 1, 2002. To avoid prosecution, all five African governments withdrew their troops from the DRC between April and July. This did not end the conflict in the DRC, which was maintained by local militias. Yet it substantially reduced the violence and harm done to citizens of the Congo. Even before going into effect, the ICC had served the purposes of its proponents by helping to reduce carnage in one of the countries most ravaged by war crimes.

Linda Carter and Charles Chernor Jalloh, law professors at the University of the Pacific and Florida International University respectively, and Mark Ellis, executive director of the International Bar Association, have now published The International Criminal Court in an Effective Global Justice System. It is a comprehensive, fair-minded, and knowledgeable overview of the International Criminal Court and its relationship to the other tribunals established to do justice internationally. “The ICC,” they write, “is, by any measure, beginning to establish itself as a key player in international affairs as it gives live meaning to its statutory provisions, develops investigations and trial procedures, and builds an early body of useful jurisprudence.”

Is this assertion justified? Aside from the small number of cases the ICC has handled and the much smaller number of convictions, has the court in fact deterred national leaders from contemplating measures that may involve war crimes, crimes against humanity, or genocide? Does Donald Trump, or Vladimir Putin, or Xi Jinping worry about what the ICC may do if they order the use of armed force? What about the leaders of lesser powers, such as President Abdel Fattah al-Sisi of Egypt, President Recep Tayyip Erdoğan of Turkey, Prime Minister Narendra Modi of India, Ayatollah Ali Khamenei of Iran, or North Korea’s Kim Jong-un? Did Philippine President Rodrigo Duterte worry that he might be indicted for crimes against humanity when he instituted his policy of summarily executing thousands of suspected low-level drug traffickers and users?

It is unlikely that the ICC is a deterrent in these cases. Even when crimes have been committed in countries where the ICC has jurisdiction—Duterte’s drug-related executions in the Philippines; Russian war crimes in Georgia; US crimes in Afghanistan—the court has been largely ineffective in bringing forth prosecutions. In 2006, the office of the prosecutor commenced a preliminary examination in Afghanistan and, on November 20, 2017, more than a decade later, it submitted a 181-page request to the court’s Pre-Trial Chamber for permission to conduct an investigation. Authorization of an investigation is the next step before indictments can be issued.

Though it may be difficult to support the argument that the ICC is a significant participant in international affairs globally, it has undoubtedly become important in Africa. To be sure, the indictments brought before it have not yet led to the criminal conviction of an African head of state. The ICC prosecution of the president of Kenya, Uhuru Kenyatta, had to be withdrawn because witnesses became unavailable; its prosecution of President Omar al-Bashir of Sudan has not proceeded because of the court’s inability to get custody of him; the trial of former president Muammar Qaddafi of Libya could not take place because he was killed during the uprising in his country; and while former president Laurent Gbagbo of Côte d’Ivoire has been in the ICC’s custody since 2011, his prosecution has been delayed by a number of factors, including his poor health. But the sheer fact of these prosecutions has been significant, and they have been accompanied by international tribunals that did sentence African leaders to long prison sentences. The former heads of state of Liberia and Chad were sentenced by hybrid tribunals, and a former prime minister of Rwanda, Jean Kambanda, is serving a life sentence after conviction by Rwanda’s International Criminal Tribunal.

Unsuccessful ICC cases, together with successful international tribunals, add up to a high degree of accountability for African leaders contemplating actions that could be seen as war crimes or crimes against humanity. Although atrocities have been committed in recent years in a number of African countries, among them South Sudan, the Central African Republic, the Democratic Republic of Congo, Somalia, and Nigeria (by parties to the war with Boko Haram), it is possible that the level of such crimes in Africa would be significantly higher were it not for the ICC.

African resentment of what seems an exclusive focus on African criminality, however, risks undermining or nullifying the ability of the ICC to carry out its mission in the region where it has had the most significant impact. One African country, Burundi, has already withdrawn from the Rome Statute.⁶ The leaders of two other African countries, Gambia and South Africa, also said they were withdrawing, but the Gambian leader was defeated for reelection, and South Africa President Jacob Zuma’s announcement of withdrawal was overturned in court because he did not follow constitutional procedures. On December 6, the Zuma government announced that it would ask Parliament to authorize withdrawal.

If other African countries withdraw, the ICC would lose jurisdiction over crimes committed on their territory. The chances of the UN Security Council referring such cases to it would probably decline. Another threat to the ICC is an effort within the African Union to launch an African Criminal Court with jurisdiction over the same crimes as the global body. Carter, Jalloh, and Ellis point out a number of problems with this proposal. An African Court is likely to have many fewer of the resources needed to conduct complex criminal investigations than a global body that gets support from a number of rich countries. Its main flaw, as they indicate, is “that the AU will not be willing to deal with Heads of State that commit crimes…[proving] the intention to exclude real accountability.”

If an African Criminal Court without the power to prosecute heads of state and other high-ranking officials is established by the African Union, it would also undermine the ICC. To prevent that happening, the ICC might successfully address African resentment by extending its reach to other parts of the world. The ICC prosecutor, Gambian lawyer Fatou Bensouda, has said that it is already conducting investigations in countries such as Georgia and Afghanistan and has asked for the authority to bring indictments for crimes in Afghanistan, including against American officials.

But this may not mean much to resentful African governments until actual indictments are brought for crimes committed in other parts of the world. As it happens, on February 8, Bensouda announced that she is launching preliminary examinations regarding the Philippines and Venezuela. Both countries are parties to the Rome Statute, so Bensouda does not need Security Council referrals to proceed. In the Philippines, her focus will be on the estimated 12,000 extrajudicial killings of suspected drug users under the direction of President Duterte since he took office in July 2016. In Venezuela, it will be on the violent suppression of peaceful protests under the direction of President Nicolás Maduro.

Preliminary examinations can take a long time. But if the prosecutor can proceed expeditiously and bring indictments for crimes against humanity in these cases, the impact on the ICC itself would be immense. African leaders would no longer be the only ones to be held accountable for great crimes.

—February 14, 2018

Postscript—A reader has suggested that Rwanda did not withdraw its forces from the Democratic Republic of the Congo “until well after” July 2002. On July 17, 2002, I took part in an event in Rome to mark the ratification of the treaty for the ICC and the commencement of its operations.  One of the speakers at that event was the Congolese minister of justice.  He said that a principal factor in the DRC’s ratification of the treaty for the ICC the previous April was that it would help to persuade other African governments to withdraw their troops, and that this had been successful. As withdrawals had taken place during that period, I gave credence to his remarks. Certainly, the situation in the DRC in that period was complex and my brief reference to these developments does not tell the whole story. —February 28, 2018